Memo To Obama And McCain: Add To Your Do-Do List

By William Fisher

Millions of words have been written and spoken about the politicization of the Department of Justice before, during and after the departure of Alberto Gonzales. But the silence on two of the DOJ’s most toxic practices has been deafening.

One is publicly labeling someone “a person of interest.” The other is wildly exaggerating the seriousness of the charges against a person. Both have been widely and indiscriminately used over the past decade. Both have destroyed people’s lives. Both have contributed to the environment of fear that followed 9/11. Both have been unashamedly exploited for career advancement by prosecutors, and for political gain by zealously loyal Bushies.

And neither has received any serious attention from the media or from the current presidential candidates.

But a new occupant of the Oval Office could and should end these dreadful practices with the stroke of a pen.

What exactly is a “person of interest?” The answer is that nobody knows. And nobody knows because the term has no basis in law. It first rose to prominence when the DOJ applied it to Richard Jewel, the hapless security guard who alerted authorities to the presence of a suspicious package at Centennial Olympic Park in Atlanta. A bomb exploded there shortly afterwards, killing a bystander and causing a fatal heart attack to a foreign journalist. It wasn’t long before the Feds’ attention shifted to the guy who should have been celebrated as a hero.

Jewel was “not accused” of planting a bomb or of anything else. The Clinton Justice Department told the media he was neither a “target” nor a “suspect” – terms customarily used by law enforcement. But he was effectively both. He was relentlessly harassed by the media, which painted him as a gung-ho cop wannabee. And his life was forever damaged, notwithstanding a belated apology from then Attorney General Janet Reno (the FBI never apologized).

Then came Steven Hatfill, the “person of interest” in the deadly 2001 anthrax mailings. In 2002, he was labeled a “person of interest” by then- Attorney General John Ashcroft. Tagged by the FBI, but neither accused nor charged, the Feds hounded this government scientist 24/7 for years. He lost his job and his reputation and became obviously unemployable.
Hatfill sued the DOJ. This summer, he agreed to take $5.82 million and an apology from the government to settle his claim that the DOJ and the FBI invaded his privacy and ruined his career.

Since Jewel and Hatfill, the “person of interest” moniker has metastasized to local and state law enforcement authorities that have used it hundreds of times. And since most ordinary folks lack the resources to fight back against injustice by innuendo, they have no option other than to let the authorities wreck their lives.

Under the DOJ’s own guidelines, prosecutors are allowed to publicly identify a person only they are seeking an interview for a criminal investigation. These guidelines prohibit any other disclosure of a person’s name until formal charges have been brought. Honored in the breach, as they say.

The National Association of Police Chiefs got it absolutely right when they called “person of interest” a "euphemism for a suspect."

So did Brian J. Foley, Visiting Associate Professor of Law at Boston University School of Law. He told me: “A 'person of interest' is not an official designation. It is abused. Law enforcement is politics. Those in power use the term to assure the public that they're 'doing something.' Police authorities fear admitting that they literally have no clue who committed a crime.”

He continued: “Unfortunately, these politicians trash lives along the way -- the 'person of interest' is someone against whom there is no real evidence but someone who can be, at least for a time, used, vilified, scapegoated. It's time our law enforcement politicians learn to say 'No comment' and for them to educate the public that very often, especially at the beginning of a case, police have no idea who the perpetrator was, or at least no real evidence. The public should want responsible action (and restraint), not simply action. The media should also cease its complicity in this charade and rigorously question politicians who finger someone as a 'person of interest,' asking what evidence the police have to support their grave allegation. Otherwise, naming someone a 'person of interest' cheaply serves many of the same cynical purposes that 'show trials' serve in totalitarian regimes.”

And Prof. Peter Shane of the University of Ohio Law School. He told me: “The ‘person of interest’ phenomenon is something like the opposite side of the coin from terrorist watch lists. In the name of improving public safety, government authorities want to create some status for suspicious-seeming individuals that would enlarge government's investigative power without triggering the civil liberties protections that go with identifying anyone as an actual criminal ‘suspect’. So far, it is not at all clear how much safety the public is getting out of the shift to a ‘preventive law enforcement’ mentality. There is a substantial risk that we will wind up less free, but actually no safer.”

Well said both!

The Brits have done better. The UK has some of the tightest reporting restrictions in the Western world, limiting the ability of news organizations to publish pictures or articles about the subjects of criminal investigations. The rules are intended to ensure fair trials by keeping potentially prejudicial information out of the hands of would-be jurors. By and large, the cops and the media take this rule very seriously (though some of the tabloids don’t; names too often get leaked and published).

We should pay attention to what law enforcement does and doesn’t allow across the Atlantic. People who are not charged with crimes should remain anonymous. Until they are charged, authorities should merely tell the public – as the British authorities do – that folks in custody are “helping police with their inquiries.”

Hyping charges is arguably an even more egregious practice because it can adversely influence judges and juries.

The poster-boy for this riff is Jose Padilla – the US citizen accused by then Attorney General John Ashcroft of plotting to use a radioactive “dirty bomb” to blow up buildings in America.

Padilla was labeled an “enemy combatant” by President Bush. He was unconstitutionally held largely incommunicado in a US military brig for more than three years until the eve of a ruling from the US Supreme Court. Only then did the DOJ – fearing the Court’s decision would be another legal setback -- transfer him to the custody of the US criminal justice system.

Padilla was charged with membership in a North American terrorist support cell and with conspiracy to murder, kidnap and maim US nationals, and conspiracy to provide material support to terrorists. These are the crimes he was convicted of.

But what of the radioactive dirty bomb? It was nowhere to be found in Padilla’s indictment. Why was it dropped? Because there was no evidence that the DOJ could introduce and support in a court of law. Because it was hype.

But Padilla is far from the only victim of such politically-motivated hype. There’s the case of Dr. Rafil Dhafir, an upstate New York oncologist whose arrest was widely trumpeted by the state’s governor and others as a great victory in the “war on terror.” But when he went on trial in 2005, prosecutors insisted – and the judge agreed – that the word “terror” should be excluded from the courtroom. His attorney accused the government of selective prosecution by singling him out because of his race, religion and cultural background.

Nonetheless, Dhafir was convicted – and sentenced to 22 years in the slammer – mainly for violating the US government’s sanctions against Iraq by sending money for food, clothing and medical supplies through a charity he founded. He is believed to the only US citizen ever to be held in prison for violating the Iraq sanctions, although several humanitarian groups have admitted doing just that.

Then there’s the case of “The Liberty City Seven” – seven Miami residents named for the impoverish area of Miami where they lived. The seven were caught in an FBI sting operation allegedly for pledging loyalty to Al-Qaeda in a plot to blow up the Sears Tower in Chicago. When they were arrested in 2006, law enforcement officials in Washington and Miami called two widely heralded press conferences, where one senior spokesman acknowledged that the terrorist plot was more "aspirational than operational."

Despite the fact that police were unable to find explosives or other materiel that would indicate that the defendants were serious about carrying out the plot, the seven were tried, not just once, but twice. In both trials, juries failed to reach a verdict on six of the seven (one was acquitted and then deported to his native Haiti).

Want more? Well, there’s Brandon Mayfield, the Oregon lawyer who was held as a “material witness” (another toxic practice) because the FBI said his fingerprints were found on one of the backpacks used to carry explosives used to blow up the trains in Madrid in 2004. The convert to Islam was kept in jail without bond for two weeks, until the FBI had one of its rare oops! moments: It fessed up incorrectly getting Mayfield’s fingerprints confused with someone else’s.

Mayfield got an apology, a $2 million settlement, and the overturning of some provisions of the USA Patriot Act on constitutional grounds when he sued the DOJ.

These cases are, to coin a phrase, only the tip of the iceberg. There are dozens of others in which innocent people have been placed in a deadly legal limbo by the “person of interest” label, or subjected to needless trials or given excessive sentences because of political hype or prosecutorial misconduct.

Cleaning up this mess should be a lot easier than getting Harriet Myers to testify to Congress. Or closing Guantanamo. The Department of Justice makes its own rules for behaving ethically within the Constitution and the laws passed by Congress.

The DOJ can rewrite its rules as easily as it broke them. It needs to make the term “person of interest” off limits for DOJ personnel, including the FBI. And it needs to send a clear message to prosecutors and FBI folks that hyped accusations are not campaign bumper stickers or the newest super-highway to career advancement.

This will require a president with the guts to choose an attorney general who believes in the rule of law and who will not tolerate anything less.

If our next AG has any problem with the above, we’ve elected the wrong president.